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The Queen (Appellant)
v.
Joseph M. Weintraub (Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and Sheppard D.J.—Ottawa, June 26, 1972.
Income tax—Appeal from assessment—Defendant should be the Queen—Income Tax Act, R.S.C. 1952, c. 148, s. 175 (am. 1970-71, c. 63)—Federal Court Act, s. 48.
Having regard to the provisions of the Department of National Revenue Act, R.S.C. 1970, c. N-15, section 4, the Minister in exercising his functions under the Income Tax Act does so as an officer of the Crown and not as persona designata. Accordingly an appeal against an income tax assessment must under section 175 of the Income Tax Act, R.S.C. 1952, c. 148, as amended by 1970-71, c. 63, be instituted in the manner set forth in section 48 of the Federal Court Act, i.e. against Her Majesty the Queen and not the Minister of National Revenue.
APPEAL from Noël A.C.J., ante, p.
G. W. Ainslie, Q.C. and A. P. Gauthier for appellant.
B. Verchere for respondent.
JACKETT C.J. (orally)—This is an appeal from a decision of the Trial Division dated June 13, 1972, dismissing an application for an order dismissing this appeal, which was brought by way of a Statement of Claim or a Declaration under section 48 of the Federal Court Act on the ground "that no relief can be sought or obtained from Her Majesty ... in respect of the exercise by the Minister of National Revenue of the administrative duty conferred on him as a persona designata under the provisions of the Income Tax Act to assess the tax payable by the Plaintiff".
I am of opinion that this appeal should be dismissed with costs for the reasons given by the Associate Chief Justice in dismissing the motion. However, out of deference to the argu ment of counsel, I shall endeavour to summa rize briefly the reasons as I see them why the appeal must fail.
The Income Tax Act imposes taxes payable to Her Majesty. (See section 118 of the "former
Act" and section 222 of the "amended Act"'.) The Minister of National Revenue, who is head of a government department (see the Depart ment of National Revenue Act, R.S.C. 1970, c. N-15), is charged with the administration and enforcement of the Income Tax Act. (See sec tion 220 of the amended Act.) He has no rights or obligations personally in respect of the taxes imposed. What he does, through his department, is carry on, on behalf of Her Majesty, all the operations that are required to collect the amounts payable under the Act and to repay, on behalf of Her Majesty out of Her Majesty's funds, any amounts that have to be repaid under the Act.
One of the things that must be done by any minister who has to collect amounts payable to the Crown is to make a determination, as best he can, of the amounts that are payable, so that he can claim them. The device adopted in the Income Tax Act to get a final determination of such amounts is to make the minister's determi nation, or assessment, of any such amount final, subject to appeal to the Courts. In my view, however, such a determination or assessment is nevertheless merely a part of the minister's administration of the Act. It is done in the carrying out of his duties as a minister of the Crown charged with the collection of the revenues.
On an appeal to the Courts from such an assessment, the issue is an issue as to the amount of tax payable to Her Majesty and is, therefore, an issue between the taxpayer and Her Majesty. When, heretofore, such an appeal has been carried on by way of a proceeding set up as a proceeding between the taxpayer and the minister, the minister has been a nominated party carrying on litigation on behalf of Her Majesty just as the Attorney General is con ducting litigation on behalf of Her Majesty when he brings an action, as Attorney General, in one of the other courts of the land for a debt owing to Her Majesty.
Until recently, it has been the custom to carry on litigation concerning rights or obligations of the Crown by way of special proceedings, e.g., petitions of right and informations. The current
tendency is however to eliminate such special proceedings, with a view to obtaining a uniform proceeding for all law suits whether the Crown is a party or not. So, section 48 of the Federal Court Act provides for actions against the Crown being launched by a statement of claim or declaration as are actions in this Court between subject and subject and Rule 600 of the Rules of this Court provides for actions by the Crown being launched in the same way. Section 175 of the amended Income Tax Act is another step in the same direction.
In my view, section 175 of the amended Income Tax Act is clear and unambiguous. It provides for appeals being instituted "in the manner set forth in section 48 of the Federal Court Act", which provision authorizes the institution of a proceeding against the Crown by a document in the form set out in Schedule A of that Act, and that Schedule provides for a state ment of claim or declaration entitled between the person launching the proceeding, called "Plaintiff", and "Her Majesty the Queen" called "Defendant". I have difficulty in under standing how it could be thought that section 175 of the amended Income Tax Act could mean anything except that an appeal may be brought by a statement of claim or declaration in which the taxpayer is called "Plaintiff" and the other party is "Her Majesty the Queen" and is called "Defendant".
With regard to the argument that an assess ment cannot be referred back to the minister if he is not named as a party, I find it difficult to understand the force of the logic involved. A Court of Appeal, if so authorized, refers an ordinary matter back to a trial court although that Court is not named as a party to the appeal. So, also, I find no difficulty in applying a provi sion that authorizes the referring back of an assessment to the minister for re-assessment although he is not named as a party to the proceeding. The same answer may be made to any difficulty that may be raised concerning any other order that may be made in disposing of an income tax appeal. What the minister does under the Act, he does on behalf of Her Majes ty and, if the Court has authority to give a
direction that involves him exercising his func tions under the Act, as, for example, an order that he make a refund, all that is necessary is that Her Majesty, whose rights and monies are those involved, be a party.
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THURLOW J.—I am of the same opinion and I only wish to add that even if some of the functions of the Minister under the Income Tax Act should be regarded as exercisable as a persona designata rather than as a servant of the Crown, I would reach the same conclusion as to the interpretation of section 175.
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SHEPPARD D.J. concurred with Jackett C.J.
I use these expressions in the sense defined by section 8 of c. 63 of 1970-71.
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